However Californians vote on Nov 2, pot policy in the state will still be in a legal haze
One week from tomorrow, the nation’s most populous state may decriminalize marijuana. Polls indicate that California’s Regulate, Control and Tax Cannabis Act of 2010, otherwise known as Proposition 19, is supported by between 39 and 44 percent of likely voters.
But even if the proposition becomes law, California’s 338 separate police departments and 58 county sheriffs are likely to have the final word.
Several of the state’s law enforcement authorities, such as Los Angeles County Sheriff Lee Baca, have already signaled they will continue to enforce federal laws against possession and cultivation of marijuana—no matter what happens.
“You’re going to have massive confusion,” predicts Rodney Jones, Chief of Police in Fontana, California, a city of 200,000 located 50 miles east of Los Angeles.
Jones did not say how his own department would respond if the proposition passed, but Martin Mayer, general counsel for the California Police Chiefs Association (CPCA), says there are precedents for different enforcement approaches. Laws against fireworks, he points out, vary widely across the state. In some cities and countries they are a legal and taxable commodity, as marijuana would be if Prop 19 passes; but in others, fireworks are illegal.
Nevertheless, fireworks don’t push the same political buttons that marijuana does. Decriminalization of marijuana would not only put California at odds with national anti-drug policy but would challenge decades of moral strictures that consider pot the first step in a downward slide of addiction to harder drugs.
Either way, California police are sworn to uphold the laws of the state—and may find it difficult to rely on federal drug law to make local arrests. They may, however, find allies in local prosecutors.
“If a judge dismisses a marijuana case because of Prop 19, a prosecutor could appeal saying that the law the determination was based on is unconstitutional,” says Mayer.
Waiting on the Feds
Until recently, the Obama administration avoided weighing in directly on Prop 19. But on October 13, Attorney General Eric Holder, in a letter to a group of former administrators of the Drug Enforcement Administration, said that “regardless of the passage of this or similar legislation, the Department of Justice will remain firmly committed to enforcing the Controlled Substances Act in all states.” Holder was responding to a letter the group of nine had sent him on August 24, expressing their “grave concern” over Prop 19.
But what would such a federal crackdown actually look like?
Pretty much everyone agrees that Prop 19 would render California in blatant violation of the federal Controlled Substances Act, but no one seems to envision thousands of federal agents descending on the state to drag pot smokers—even those who take advantage of the new law and begin growing their own weed—from their homes.
Even outside California, support for legalization is at an all-time high: according to a 2009 Gallup poll, 44 percent of Americans favor dropping criminal penalties for the drug, up from just 12 percent in 1970. And although advocates on both sides debate everything from whether decriminalization will turn more kids into potheads, to how legal domestic cultivation will impact Mexican drug cartels, to whether taxing the state’s number one cash crop could help it climb from beneath a massive deficit, there is no doubt that the national conversation about pot has evolved. Last week former Surgeon General Joycelyn Elders advocated legalizing marijuana for recreational use, and when the Los Angeles Times and other national publications cover marijuana they now often cover it as a lifestyle issue – focusing on growing the herb and intergeneration usage in families—instead of a health or law enforcement one.
Still, Asa Hutchinson, former administrator of the DEA, and a signatory of the letter to Holder, says that he and his colleagues hope the administration will sue the state of California to prevent the initiative from taking effect, just as they did in the wake of Arizona’s controversial immigration law.
“The logical first step is for the Department of Justice to file suit against the state,” says Hutchinson.
A key reason would be to head off similar marijuana decriminalization moves by other states. “I don’t imagine the feds wanting to have a patchwork of enforcement policies, all depending on the nuances of each state,” Hutchinson says.
And such a patchwork is indeed a possibility. In an email to The Crime Report Ethan Nadelmann, founder and executive director of the Drug Policy Alliance, indicated that pro-decriminalization groups are ready for a long national fight.
“Win or lose on Prop 19, the plan is the same," writes Nadelmann, "which is to put the issue on the ballot wherever polls show a reasonable majority of the electorate in a state in favor, in those states that have the initiative process, and where elected officials are unwilling to move forward...economics, demographics and principle are all on our side.”
Indeed, if Prop 19 passes, Representative Peter Buckley of Oregon told The Crime Report he will introduce a similar measure in his state. And, according to a recent Wall Street Journal story, Democrats across the country are watching this race closely for just that reason: if marijuana gets Democrats to the polls (the same way gay marriage drives Republicans to vote), the party might support similar initiatives in 2012.
That may be why Holder’s letter made no specific promises of a lawsuit. In fact, in contrast to the passionate tone of the original DEA heads’ letter, it was a markedly tepid response.
“I don’t think the feds wants to get involved in this,” says Mayer. “But they’re being pushed. And I think Holder would look foolish after making that statement if he doesn’t challenge the law.”
Pot policy in flux
In some ways, California has already blurred the national template over drug policy. In 1996, the state approved Proposition 215, which legalized pot for medical use. In the nearly 15 years since, dispensaries have either thrived or been shuttered depending upon their locations. In Oakland, where dispensaries blend in among office buildings, the citizens even levied the nation’s first tax on the weed in 2009 , and the city council recently approved a measure allowing for industrial cultivation of marijuana.
And regardless of the outcome of Prop 19, California has already moved the goalposts on marijuana policy. On September 30, Gov. Arnold Schwarzenegger signed a new law downgrading possession of less than an ounce of marijuana from a misdemeanor to a simple infraction, which, like a traffic ticket, carries only a $100 fine.
Some have argued that the move by the governor, who opposes Prop 19, erases the urgent need for legalization. However, supporters claim decriminalization would save millions by allowing police to concentrate on more serious crimes.
But police say they aren’t really spending resources on petty pot offenses anyway.
Lt. Jarrod Burguan of the San Bernadino Police Department told The Crime Report that even if Prop 19 passes, he doesn’t anticipate officers in his department changing the way they police, at least not right away.
“There are likely to be court challenges,” explains Lt. Burguan. “Once those are settled we will probably get specific guidelines from the Attorney General on how we should enforce the law.”
Deputy Chief Bill Blair of the Long Beach Police Department also says his department will likely take a wait-and-see attitude. “You’re breaking now ground with this,” says Blair. “We’re going to have to come up with guidelines for how officers deal with circumstances” such as entering a citizen’s house or searching a car and finding marijuana. But, Blair adds, his officers are already walking a fine line since September 30.
Much, says Blair, depends on who wins the race for attorney general. Both candidates, Steve Cooley and Kamala Harris are officially opposed to Prop 19. In a recent debate, Harris was non-committal when asked to give details about her response should the measure pass, but Cooley was clear, saying he believed it was “unconstitutional” and “preempted by federal law.”
Until then, Lt. Burguan says, officers will probably keep “doing what they’re doing” when they stop civilians who have less than an ounce of pot: “We just write a ticket and send them on their way.”
But police encounter pot constantly, and according to pro-Prop 19 advocacy group NORML, there were more than 78,000 arrests for a marijuana offense in California in 2008, the largest number since 1976; just over 61,000 were for misdemeanors.
And there are plenty of unsolved issues. Walt Tibbet, chief of police in Fairfield, California, a city of 100,000 about 50 miles northwest of San Francisco, worries that if Prop 19 passes his deputies will have their hands tied when it comes to marijuana-related DUIs. Unlike with alcohol impairment, which can be accurately measured on the spot with a breathalyzer, marijuana use can only be as accurately detected by a more invasive blood or hair sample test, which can’t exactly be performed curbside.
“The problem with this initiative (is) it sets no standards” for impairment, says Tibbet. “We’re concerned about bus drivers and pilots. What will be our response? How can we maintain a drug-free workplace?”
Adding to the uncertainty is the potential tax windfall that legal marijuana represents for California’s economically stressed-out officials. The California Police Chiefs Association’s Mayer notes that “political considerations” may determine whether local prosecutors decide to push the pot button. In counties such as Mendocino, Humbolt and Alameda, marijuana is a lucrative cash crop, and Mayer doubts prosecutors there will aggressively force the issue. “And,” he adds, “if the DAs stop prosecuting, eventually the police will stop making arrests.”
Which is precisely the outcome Prop 19 advocates are hoping for. But it will be up to California voters to set it all in motion.
Julia Dahl is a New York-based freelance writer and contributing editor to The Crime Report.
Photo by Dustin Sacks via Flickr.
Posted by Nick
Sunday, October 31, 2010 12:53
THAT IS RIDICULOUS!!!! MEXICANS ARE GOING TO KILL EACH OTHER WITH OR WITHOUT US. THEY DONT CARE ABOUT OUR LAWS REGARDLESS. YOUR JUST MAKING MORE EXCUSES. THEY PULL HIT AND RUNS WITH NO INSURANCE OR LISCENSES. THEY KIDNAP RAPE AND MURDER AND RUN ACROSS THE BORDER. WHY DO YOU CARE WHAT THEY DO ON THEIR SIDE OF THE BORDER.
Posted by Jose
Friday, October 29, 2010 08:18
The law was specifically written so as not to conflict with Federal Law.
If the Feds want to prosecute marijuana violations it will be done in Federal Court and defendants will be held in Federal Prison.
Arizona is being sued for enforcing Federal immigration law. Whoops, bad timing on that lawsuit. I wonder if California could be sued for enforcing Federal Drug Law.
The State/County/City governments will have no authority to play the pot game. These rogue police officers should join their brothers and sisters in the Mexican Police Department.
Arizona is being sued for
Posted by jaengee
Thursday, October 28, 2010 03:32
I didn’t see your original mistake, but the mistake Nik posted is not a typo. It is an incorrect statement. A typo id l,ke th8s (A typo is like these). A mistake in typing. Not a mistake in facts. Also, you stated in the beginning that California “may decriminalize marijuana”. Marijuana in CA is already decriminalized. It is not legal however. You meant to say “legalize” I believe.
Posted by Christian
Monday, October 25, 2010 09:11
This is very poor work…clearly unresearched and without a proper editor.
First, there is a big difference between legalization and decriminalization.
Learn the facts first.
Also, to some of the earlier prohibitionist posters. One qualitative study does not evidence make. There are decades of quantitative studies, published in actual peer-reviewed research journals that show the effectiveness of legalization and the relative physical harmlessness of cannabis. Can anyone say “lower rates of head, neck, throat, and lung cancer than non smokers.”
Posted by julia
Monday, October 25, 2010 08:58
My wording was problematic. From my reporting, these saliva tests are somewhat less accurate and there are fewer agreed upon standards than a blood or hair test, but you’re right, they do exist. Thank you for pointing this out.
Posted by julia
Monday, October 25, 2010 08:51
Thank you, Nik, for pointing out two typos!
Posted by Wall-O-Text
Monday, October 25, 2010 07:42
Now the Trap closes. Prohibition was a bad drug. Funding government agencies based on a Dr. Seuss’s Star-Bellied Sneetches story was going to end badly. The well is dry and it’s time to move on. It is better for all of us that we do. :)
Posted by Opusrules
Monday, October 25, 2010 04:28
Walt Tibbet, chief of police in Fairfield, California… says “Unlike with alcohol impairment, which can be accurately measured on the spot with a breathalyzer, marijuana use can only be detected by a more invasive blood or hair sample test, which can’t exactly be performed curbside.”…. ABSOULUTELY UNTRUE!!! – Back in the 70’s (@ 1978) I was tested for THC while in the service… This was performed by using a swab, swabbling the inside of my mouth. It was accurate. Mr Tibbet is either a liar or clueless; you choice.
Posted by malcolm kyle
Monday, October 25, 2010 02:04
While bullets fly into El Paso and bodies pile up in the streets of Juarez, and thugs with gold-plated AK-47s and albino tiger pens are beheading federal officials and dissolving their torsos in vats of acid, here are some facts concerning the peaceful situation in Holland. —Please save a copy and use it as a reference when debating prohibitionists who claim the exact opposite concerning reality as presented here below:
Cannabis-coffee-shops are not only restricted to the Capital of Holland, Amsterdam. They can be found in more than 50 cities and towns across the country. At present, only the retail sale of five grams is tolerated, so production remains criminalized. The mayors of a majority of the cities with coffeeshops have long urged the national government to also decriminalize the supply side.
A poll taken earlier this year indicated that some 50% of the Dutch population thinks cannabis should be fully legalized while only 25% wanted a complete ban. Even though 62% of the voters said they had never taken cannabis. An earlier poll also indicated 80% opposing coffee shop closures.
It is true that the number of coffee shops has fallen from its peak of around 2,500 throughout the country to around 700 now. The problems, if any, concern mostly marijuana-tourists and are largely confined to cities and small towns near the borders with Germany and Belgium. These problems, mostly involve traffic jams, and are the result of cannabis prohibition in neighboring countries. Public nuisance problems with the coffee shops are minimal when compared with bars, as is demonstrated by the rarity of calls for the police for problems at coffee shops.
While it is true that lifetime and past-month use rates did increase back in the seventies and eighties, the critics shamefully fail to report that there were comparable and larger increases in cannabis use in most, if not all, neighboring countries which continued complete prohibition.
According to the World Health Organization only 19.8 percent of the Dutch have used marijuana, less than half the U.S. figure.
In Holland 9.7% of young adults (aged 15 to 24) consume soft drugs once a month, comparable to the level in Italy (10.9%) and Germany (9.9%) and less than in the UK (15.8%) and Spain (16.4%). Few transcend to becoming problem drug users (0.44%), well below the average (0.52%) of the compared countries.
The WHO survey of 17 countries finds that the United States has the highest usage rates for nearly all illegal substances.
In the U.S. 42.4 percent admitted having used marijuana. The only other nation that came close was New Zealand, another bastion of get-tough policies, at 41.9 percent. No one else was even close. The results for cocaine use were similar, with the U.S. again leading the world by a large margin.
Even more striking is what the researchers found when they asked young adults when they had started using marijuana. Again, the U.S. led the world, with 20.2 percent trying marijuana by age 15. No other country was even close, and in Holland, just 7 percent used marijuana by 15 — roughly one-third of the U.S. figure.
In 1998, the US Drug Czar General Barry McCaffrey claimed that the U.S. had less than half the murder rate of the Netherlands. That’s drugs, he explained. The Dutch Central Bureau for Statistics immediately issued a special press release explaining that the actual Dutch murder rate is 1.8 per 100,000 people, or less than one-quarter the U.S. murder rate.
Here’s a very recent article by a psychiatrist from Amsterdam, exposing Drug Czar misinformation. Just put the following sentence in GOOGLE: “Amsterdam Psychiatrist Blasts US Drug Czars for Distortions, Fear-Mongering”
Now let’s look at a comparative analysis of the levels of cannabis use in two cities: Amsterdam and San Francisco, which was published in the American Journal of Public Health May 2004,
The San Francisco prevalence survey showed that 39.2% of the population had used cannabis. This is 3 times the prevalence found in the Amsterdam sample
Source: Craig Reinarman, Peter D.A. Cohen and Hendrien L. Kaal, The Limited Relevance of Drug Policy.
Moreover, 51% of people who had smoked cannabis in San Francisco reported that they were offered heroin, cocaine or amphetamine the last time they purchased cannabis. In contrast, only 15% of Amsterdam residents who had ingested marijuana reported the same conditions. Prohibition is the ‘Gateway Policy’ that forces cannabis seekers to buy from criminals who gladly expose them to harder drugs.
The indicators of death, disease and corruption are even much better in the Netherlands than in Sweden for instance, a country praised by UNODC for its so called successful drug policy.
Check out YouTube and watch Antonio Maria Costa doing his level best to avoid discussing the success of Dutch drug policy.
The Netherlands also provides heroin on prescription under tight regulation to about 1500 long-term heroin addicts for whom methadone maintenance treatment has failed.
The Dutch justice ministry announced, last year, the closure of eight prisons and cut 1,200 jobs in the prison system. A decline in crime has left many cells empty. There’s simply not enough criminals.
Posted by Cann_Do
Monday, October 25, 2010 01:17
“Pretty much everyone agrees that Prop 19 would render California in blatant violation of the federal Controlled Substances Act”
*********************
Maybe this is a small distinction, but wouldn’t the passage of Prop 19 render individual Californians in violation of the federal CSA? It wouldn’t put the State of California in violation, from what I understand.
The State doesn’t enforce federal law anyway, and by passing Prop 19 California is only removing enforcement of its own state laws against Californians. It says nothing of federal law, so the feds can attempt to continue their policy of enforcing the CSA and cannabis prohibition to their heart’s delight.
However, I think it’s unlikely the feds will “vigorously enforce” the CSA and work hard to arrest the Administration’s political base as we come into election cycle 2012. That is the fed’s fear… that California exerts it’s states rights prior to an major election.
Vote YES on Prop 19, for Human, Race, States, Individual and Medical Rights.
Posted by Nik
Sunday, October 24, 2010 11:33
WOW!!! I only read the first few paragraphs but I can see poor work. First, are you a journalist? Second, do you proof read anything or have someone edit your work?
Fontana is EAST of LA (Google Maps)
You wrote “Fontana did not say how his own department would respond if the proposition passed,”
Fontana is not a person. I believe you meant Chief of Police Rodney Jones.
I had to write a comment when there are two glaring problems in two adjacent sentences
I will read more and enjoy
Posted by Marijuana law would propel California into unknown territory – Los Angeles Times | News BB
Sunday, October 24, 2010 11:18
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Posted by John
Sunday, October 24, 2010 10:21
Julia, this is a well researched and interesting article, but I wish you had been able to delve a little deeper into some of the myths that the pro-Prop19 advocates are spreading – like the one that says legalization will end the violence in Mexico. The Rand corp study shows that this is not the case, and indeed more violence will result from the increase in demand for cheaper Mexican pot if Prop 19 passes. This video makes that point and several others quite humorously:
http://www.youtube.com/watch?v=-3hMG5viMxM